Considered and decided by Dietzen, Presiding Judge; Halbrooks,
Judge; and Parker, Judge.*

S Y L L A B U S

The
absence of a provision for an evidentiary hearing in Minn. Stat. § 245C.27
(2004), is not an unconstitutional denial of procedural due process. Under the statute, allowing the applicant to
file written submissions instead of holding an evidentiary hearing satisfies procedural
due process so long as the procedure followed allows the applicant to
adequately present his case.

O P I N I O N

DIETZEN, Judge

Relator
Reginald Sweet challenges the decision of the Commissioner of Human Services
(commissioner) denying relator’s request to set aside his disqualification from
working as a counselor in a state-licensed program because of his criminal
record, including convictions of first-degree and third-degree criminal sexual
conduct. Relator argues that the
commissioner’s decision was arbitrary, capricious, and unsupported by
substantial evidence and that the commissioner violated relator’s right to due
process. Because substantial evidence
supports the commissioner’s decision and relator had the opportunity and
exercised his right to present written evidence the commissioner, we affirm.

FACTS

In August and
November 1992, relator was convicted of separate controlled-substance
crimes. In June 1998, relator was
convicted of both first-degree and third-degree criminal sexual conduct. After the 1998 convictions, relator was
incarcerated. While incarcerated, he
completed a program designed to help African-American men prepare for their
release from incarceration; spent two years tutoring and facilitating classes
for other inmates on issues relating to housing, employment, personal
attitudes, and change; completed a computer-training program; and completed a
psycho-educational sexual behavior class.
He was released in May 2003.

After his release,
relator became a minister; joined the AMICUS Re-Entry Advisory Group and
speaker’s bureau, mentoring incarcerated individuals on issues related to
release from prison; became a speaker for the Council on Crime and Justice; and
provided counseling at Aftercare Services, Inc. (Aftercare) to current and
former inmates with drug and alcohol addictions.

Because Aftercare
is a state-licensed program, the Minnesota Department of Human Services’
Division of Licensing was required by law to conduct a background study on
relator, who had direct contact with individuals served by the program. Minn. Stat. § 245C.03, subd. 1 (2004). In the course of conducting the background
study, the Division of Licensing discovered relator’s prior convictions of
controlled-substance crimes and first-degree and third-degree criminal sexual
conduct. In July 2004, the Minnesota
Department of Human Services sent relator a letter informing him that he was
disqualified under Minn. Stat. § 245C.14, subd.1 (2004), from providing
direct-contact services for Aftercare.
The disqualification letter stated that relator’s convictions disqualify
him from “providing direct contact services for facilities licensed by the
Department of Human Services and the Minnesota Department of Health . . .
.” After reviewing the disqualifying information,
the commissioner stated that relator poses an imminent risk of harm to the
clients he served based on the serious nature of the convictions, the number of
convictions, and the vulnerability of the clients of Aftercare.

Under Minn. Stat.
§ 245C.21, subd. 1 (2004), relator had the right to seek reconsideration
of the disqualification. An application
form to request reconsideration prepared by the commissioner required that
relator answer certain questions pertaining to whether he poses a risk of harm
to Aftercare’s clients. The burden of
proof was on relator to demonstrate no risk of harm to Aftercare’s
clients. See Minn.
Stat. § 245C.22, subd. 4 (2004). In
determining whether relator poses a risk of harm, the commissioner was required
by statute to give preeminent weight to the safety of each person served by
Aftercare, but was also required to consider:

(1) the nature, severity, and
consequences of the event or events that led to the disqualification;

(2) whether there is more than one
disqualifying event;

(3) the age and vulnerability of the
victim at the time of the event;

(4) the harm suffered by the victim;

(5) the similarity between the victim
and persons served by the program;

(6) the time elapsed without a repeat
of the same or similar event;

(7) documentation of successful
completion by the individual studied of training or rehabilitation pertinent to
the event; and

(8) any other information relevant to
reconsideration.

See
Minn. Stat. § 245C.22, subds. 3, 4 (2004).

Relator was not
afforded an oral hearing, but he did submit a written response to the
application form and provided extensive written documentation to support his
request for reconsideration. The
application form asks questions relevant to determining whether relator poses
an imminent risk of harm. In response to
the question: “Explain the details of the crime you committed. What did you do?”, relator wrote, in part, “I
am [the victim’s] fifth victim. I know
what I did was wrong but NO sexual activity took place. I have enclosed the medical reports to prove
such. Please do a background check on
[the victim]!!! I am not the only person
[the victim] has sent to jail on the same charge.” Under the space provided for “Additional
Comments”, relator wrote, in part, “I have enclosed the sexual examination
papers along with the finding on the bottle.
You will see no DNA or fluids from me.
It’s impossible to have sex without the exchange of DNA and body
fluids.”

Relator also
described in his application for reconsideration the changes he has undergone
since he committed the crime and how his experiences could help him be a better
counselor. Relator wrote, “I received
rehabilitation while incarcerated. . . . I learned about coping with stress
management, boundaries, and [the] sexual assault cycle. And as a minister, I have to be able to teach
others from my past mistakes.” Relator
submitted 13 certificates and awards showing he had completed courses in
psycho-educational sexual behavior, computer training, life skills, and
ministry. He also submitted 12 letters
of support from his supervised-release agent, various organizations through
which he provided counseling or training services, and program organizers he
had worked with in prison. The letters
described relator as “dedicated to providing positive guidance to young men
recently released from various Minnesota Correctional Facilities,” “a major
asset in working with and helping those who are chemically dependent,” making
“positive contributions to human services,” and showing “great promise with his
diligent approach for change.” Relator
did not provide any medical or psychological evaluations describing his
rehabilitation or showing whether he poses a risk of harm to Aftercare’s
clients.

In
September 2004, the Minnesota Department of Human Services sent relator a
letter informing him of the results of the commissioner’s reconsideration. The commissioner stated that she applied and
weighed the eight applicable statutory factors with respect to relator’s
disqualification record and gave preeminent weight to the safety of Aftercare’s
clients. The commissioner noted the
serious and violent nature of relator’s criminal offenses. The commissioner stated that because of
relator’s history of assaultive behavior and because the clients relator would
work with may have “extensive challenging behaviors,” there could be a greater
risk that relator would react inappropriately to his clients’ behaviors than an
individual “who [had] never committed a violent act.” The commissioner observed that relator’s
responses on the application form blaming the victim of relator’s crimes
indicate that relator has failed to take responsibility for his actions. Regarding the letters of support, the commissioner
stated that their authors did not witness and were not victims of any of
relator’s disqualifying acts, and relator’s “behavior at the time of the
disqualifying event may not be characteristic of [his] behavior with the person
who submitted the letter of support.”
The commissioner also noted that relator did not address his two
disqualifying drug offenses. Based on
these findings, the commissioner decided that relator had not proved that he
was rehabilitated and no longer poses a risk of harm, and, therefore, the
commissioner did not set aside relator’s disqualification. Relator then filed a petition for writ of
certiorari with this court.

ISSUES

I. Was the commissioner’s decision
denying relator’s motion to set aside his disqualification supported by
substantial evidence?

II. Was relator deprived of his right to
procedural due process because he did not receive an evidentiary hearing?

ANALYSIS

I.

Relator
argues that the commissioner’s refusal to set aside relator’s disqualification
was not supported by substantial evidence and was arbitrary and
capricious. An appellate court may
reverse an administrative decision if it is not supported by substantial
evidence or is arbitrary and capricious.
In re Excess Surplus Status of
Blue Cross & Blue Shield of Minn., 624
N.W.2d 264, 277 (Minn. 2001); Johnson v. Comm’r of Health, 671 N.W.2d
921, 923 (Minn.
App. 2003). Substantial evidence is “1.
[s]uch relevant evidence as a reasonable mind might accept as adequate to
support a conclusion; 2. [m]ore than a scintilla of evidence; 3. [m]ore than some
evidence; 4. [m]ore than any evidence; and 5. [e]vidence considered in its
entirety.” White v. Minn. Dep’t of Natural Res., 567 N.W.2d 724, 730 (Minn.
App. 1997), review denied (Minn. Oct. 31, 1997). An agency’s conclusion is arbitrary and
capricious if there is no rational connection between the facts and the
agency’s decision. Blue Cross & Blue Shield,624 N.W.2d at 277.

Relator argues that the commissioner erred by failing to
properly consider the statutory criteria and by failing to find that he was
rehabilitated and no longer poses a risk of harm to Aftercare’s clients. But the commissioner’s September 2004 denial
letter shows that the commissioner did consider the eight applicable statutory
factors. Considering the first factor in
determining whether an individual poses a risk of harm, the commissioner noted
the serious and violent nature of relator’s criminal sexual offenses. See
Minn. Stat. § 245C.22, subd. 4(b) (listing the first factor as “the
nature, severity, and consequences of the event or events that led to the
disqualification”). The commissioner
also stated that the second factor, the number of disqualifying offenses,
showed that relator poses a risk of harm because he committed four disqualifying
offenses. See id. (stating the second factor is “whether there is more than
one disqualifying event”).

The other
four reasons given by the commissioner fall under the eighth factor, “any other
information relevant to reconsideration.”
See id. First, the individuals with whom relator would
have direct contact are vulnerable because they may be in the controlled
environment of prison or recently out of prison, suffer from drug and/or
alcohol addiction, and have extensive challenging behaviors. Second, the commissioner stated that relator
failed to take responsibility for his actions.
In his request for reconsideration, relator stated that he was the
victim of the woman he was convicted of sexually assaulting and stated that the
commissioner should conduct a background check on her. Third, the support letters were not
reflective of relator’s whole character.
The letters do not address whether relator poses a risk to Aftercare’s
clients and are silent as to relator’s current medical and psychological
state. Fourth, relator failed to address
the drug charges that were also disqualifying.

The crux of
the issue is whether relator was rehabilitated and poses no risk of harm to
Aftercare’s clients. But relator
presented no medical or psychological evidence to support his contention that he
is fully rehabilitated. In his
application to the commissioner, relator blamed the victim of the crime and
argued that the evidence was insufficient to support his conviction. Here, the commissioner found, and the record
supports, the determination that relator refuses to take responsibility for his
actions and blames the victim for his criminal-sexual-conduct convictions.

We conclude
that substantial evidence supports the commissioner’s decision, which clearly
articulates the factual basis for the agency’s decision. Minn. Stat. § 245C.22, subd. 3, requires
the commissioner to give preeminent weight to the protection of clients of
state-licensed programs, and it was within the commissioner’s discretion to determine that
the evidence of relator’s rehabilitation was not sufficient to conclude that
relator does not pose a risk of harm to individuals with whom he would have
direct contact. See Blue Cross & Blue Shield,624 N.W.2d at 277; White, 567 N.W.2d at 730.

II.

Next, relator argues that Minn. Stat. § 245C.27, subd. 1(c) (2004),
unconstitutionally deprives him of procedural due process because an individual
disqualified under Minn. Stat. § 245C.15 (2004) is not entitled to an
evidentiary hearing on a motion to set aside the disqualification. The commissioner argues that the statute
provides for adequate procedural due process.

The constitutionality of a
statute is a question of law, which we review de novo. UnityChurch of St. Paul v.
State, 694 N.W.2d 585, 591 (Minn. App.
2005), review dismissed (Minn. Jun. 9, 2005). We presume statutes are constitutional, and we
will declare a statute unconstitutional “with extreme caution and only when
absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989). “A party challenging a statute carries the
heavy burden of demonstrating beyond a reasonable doubt that a statute is
unconstitutional.” UnityChurch,
694 N.W.2d at 591.

“The
due process protection provided under the Minnesota Constitution is identical
to the due process guaranteed under the Constitution of the United States.” Sartori
v. Harnischfeger Corp., 432 N.W.2d 448, 453 (Minn. 1988).“Procedural due process
protections restrain government action which deprives individuals of ‘liberty’
or ‘property’ interests within the meaning of the due process clause of the
Fifth and Fourteenth Amendments of the United States Constitution and Article
I, Section 7 of the Minnesota Constitution.”
Humenansky v. Minn.
Bd. of Med. Examiners, 525 N.W.2d 559, 565 (Minn.
App. 1994), review denied (Minn. Feb. 14,
1995). To determine whether an
individual’s right to procedural due process has been violated, we first
determine whether a protected liberty or property interest is implicated and
then determine what process is due by applying a balancing test. Mathews
v. Eldridge, 424 U.S.
319, 332, 335, 96 S. Ct. 893, 901, 903 (1976);
Humenansky, 525 N.W.2d at 566.

Relator
concedes that the state has a legitimate interest in protecting vulnerable
adults from sex offenders and does not dispute that the commissioner can make
an initial determination of disqualification without holding a hearing. But relator argues he has a protected
property interest in working in his chosen profession without governmental
interference and that only a hearing can protect that interest. Therefore, relator concludes that he is
entitled to an evidentiary hearing on his motion to set aside the
disqualification.

We have previously
recognized that an individual has a property and liberty interest in pursuing
private employment. State ex rel. Pavlik v. Johannes, 194 Minn.
10, 19, 259 N.W. 537, 540-41 (1935); Pomrenke
v. Comm’r of Commerce, 677 N.W.2d 85, 91 (Minn.
App. 2004), review denied (Minn. May 26, 2004). Here, the commissioner’s decision not to set
aside relator’s disqualification restricts relator’s ability to pursue
employment in the public sector involving counseling incarcerated and recently released
individuals in state-licensed programs.
But the commissioner’s decision does not limit relator’s ability to seek
and obtain employment as a counselor in the private sector. Nonetheless, we conclude that relator has a
property interest to pursue employment as a counselor in the public sector.

Having concluded that
relator has a property interest, we apply the Mathews balancing test to determine what process is due. In applying the Mathews test, we must consider three factors:

First, the private interest that will be affected by the official
action; second, the risk of an erroneous deprivation of such interest, through
the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s interest,
including the function involved and the fiscal and administrative burdens that
the additional or substantive procedural requirement would entail.

Fosselman v.
Comm’r of Human Servs., 612 N.W.2d 456, 462 (Minn.
App. 2000) (quoting Mathews, 424 U.S.
at 335, 96 S. Ct. at 903) (determining that individuals disqualified from
employment in direct-contact positions for allegedly failing to report the maltreatment of minors are entitled to
hearings on whether they failed to report maltreatment).

In
analyzing these three factors, we observe that the concept of procedural due
process is flexible and that an individual’s interest in working in a chosen
profession is not absolute. Pomrenke, 677 N.W.2d at 91-92; Humenansky, 525 N.W.2d at 566. A judicial hearing is not always the best method
to present a case or to determine an issue.
See Mathews, 424 U.S. at 348, 96
S. Ct. at 909 (“The judicial model of an evidentiary hearing is neither a
required, nor even the most effective, method of decisionmaking in all
circumstances.”). “All that is necessary
is that the procedures be tailored, in light of the decision to be made, to the
capacities and circumstances of those who are to be heard, to insure that they
are given a meaningful opportunity to present their case.” Id. at 349, 96 S. Ct.
at 909 (quotation omitted). We turn now
to the Mathews factors.

The first Mathews factor considers the property
interest at stake: here, the right to seek counseling employment in the public
sector. See id. at 335, 96 S. Ct. at 903. Employment in an individual’s chosen field is
significant and weighs heavily in the individual’s favor. SeeFosselman, 612 N.W.2d at 462
(determining that the first Mathews factor
weighed heavily in favor of the employees because of the significance of the
employees’ interest in retaining employment).
But unlike Fosselman, where
the employees were “unable to pursue their chosen occupations” because of the
disqualification, relator is not disqualified from working in every position in
his profession; he is only disqualified from working in state-regulated
facilities. See id. at 464. Therefore,
relator’s interest is less restricted than the employees’ interest in Fosselman. But continued employment in the public sector
is a significant interest. Consequently,
we conclude that the first factor weighs in relator’s favor.

The second factor considers
the procedures used by the governmental agency, the potential risk of an
erroneous decision, and the probable value of an oral hearing. See
Mathews, 424 U.S. at
335, 96 S. Ct. at 903. Minn. Stat. § 245C.22, subd. 4, places
the burden of proof on the applicant to show that he is not disqualified by the
statutory criteria and does not pose a risk of harm. Here, relator had the unfettered right to
present all evidence, including letters of support, that he thought the
commissioner should consider in his written submission. As such, relator was permitted to “mold his
argument to the issues the decision maker appears to regard as important” in
support of his application. Mathews, 424 U.S.
at 345, 96 S. Ct. at 908 (quotation omitted). Because relator had the right to submit his
case in writing to the commissioner, we see no prejudice to relator’s due-process
right to be heard. And because the
agency presented no controverting testimony, a hearing was not necessary to permit
cross-examination of agency witnesses.

Relator cites Fosselman and Goldberg v. Kelly, 397 U.S.
254, 90 S. Ct. 1011 (1970), to argue that
procedural due process mandates an oral hearing in the instant case. In Fosselman,
two registered nurses and a qualified mental retardation professional were
disqualified by the commissioner for failing to report the maltreatment of a
child. 612 N.W.2d at 458-59. The issue before the commissioner was whether
the nurses and professional had actually committed the act that would subject
them to disqualification: that is, whether maltreatment had occurred that they
had failed to report. Id.
at 463. Thus, the evidence supporting
the disqualification was disputed. In Goldberg, the issue was whether
recipients declared ineligible for continuation of welfare benefits had the
right to oral pretermination hearings to determine whether they met all the
eligibility requirements to receive benefits.
397 U.S. at 264, 90 S. Ct. at 1018 (stating that the termination of welfare
benefits generates a dispute over eligibility).
Here, the initial disqualification of relator because of his convictions
has not been challenged. Relator has
already been afforded the full panoply of rights in the criminal proceedings
leading up to his convictions. But the
appellants in Fosselman and Goldberg were not afforded such due-process
rights and, therefore, we conclude that the cases are distinguishable.

Based on this record, we
discern no likely value to an evidentiary hearing. Whether the case is presented orally or in
writing to the commissioner, relator would submit the same evidence. Therefore, we conclude that allowing the
appellant to file written submissions provided appellant with an adequate
opportunity to present his case.
Secondly, we also conclude that the potential risk of an erroneous
decision is the same under either procedure. The commissioner is required to review and
analyze relator’s evidence regardless of the format in which it is
presented. Therefore, we conclude that
the second factor weighs in favor of the commissioner.

The
third factor considers the government’s interests. Mathews
424 U.S. at 335, 96 S. Ct. at 903. As
we have previously discussed, the governmental interest in protecting the
public, especially vulnerable individuals attending counseling for drug and
alcohol addiction, is of paramount importance.
See Minn. Stat. § 245C.22,
subd. 3. The government also has an
interest in saving time and money by reconsidering disqualifications quickly
and efficiently, without the additional time, expenses, and personnel required
to provide evidentiary hearings to disqualified individuals. If an individual disqualified for criminal
convictions were due an oral evidentiary hearing, the commissioner would need
to hold one on the same issue every time the same individual was hired or
rehired by a state-licensed program.

Financial cost alone is not a controlling
weight . . . . But the Government’s interest, and hence that of the public, in
conserving scare fiscal and administrative resources is a factor that must be
weighed. At some point the benefit of an
additional safeguard to the individual affected by the administrative action
and to society in terms of increased assurance that the action is just, may be
outweighed by the cost.

Id. at 348, 96 S. Ct. at
909. We determine that in this case the
cost outweighs the limited benefit, if any, of providing an evidentiary
hearing. Therefore, we conclude that the
third factor weighs in the commissioner’s favor.

D E C I S I O N

Application of the Mathews balancing test results in the
conclusion that an evidentiary hearing was not required to afford relator with
procedural due process; providing relator with the right to submit evidence in
writing was adequate to meet the requirements of due process. Consequently, the statutory language
contained in Minn. Stat. § 245C.27, subd. 1(c), that an applicant is not
entitled to an evidentiary hearing is not unconstitutional on its face or as
applied to relator. Because the procedure
followed by the commissioner in this matter was appropriately tailored to the
circumstances and meets the requirements of procedural due process, we affirm.